Residential Burglaries: The Push to Upgrade

On March 15, 2012, the New Jersey Assembly passed A1035, a Bill which seeks to upgrade residential burglary from a crime of the Third Degree to a crime of the Second Degree. The Bill further seeks to upgrade residential burglary from a crime of the Second Degree to a crime of the First Degree if committed while armed. This represents a drastic departure from the current law and will have serious implications in terms of the jail time exposure for those convicted, should the Bill become new law.

In its current form, the law is as follows:

Burglary, N.J.S.A. 2C:18-2

a. Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or

(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.

b. Grading. Burglary is a crime of the second degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a deadly weapon.

Otherwise burglary is a crime of the third degree. An act shall be deemed “in the course of committing” an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

At present, “structure” includes any place adapted for overnight accommodation of persons (i.e., a residence), thereby making the burglary of a residence a crime of the Third Degree. However, A1035 seeks to add the following language to subsection b. of the current law, thereby making the burglary of a residence a crime of the Second Degree, and further amending the law as follows:

(3) Unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present.

Burglary is a crime of the first degree if in the course of committing the offense the actor unlawfully enters or surreptitiously remains in a dwelling or other structure adapted for overnight accommodation of persons, whether or not a person is actually present, and is armed with or displays what appear to be explosives or a deadly weapon.

A crime of the First Degree is punishable by a term of imprisonment between 10 and 20 years, a fine not to exceed $200,000 or both. A crime of the Second Degree is punishable by a term of imprisonment between 5 and 10 years, a fine not to exceed $150,000 or both. A crime of the Third Degree is punishable by a term of imprisonment between 3 to 5 years, a fine not to exceed $15,000 or both.

A1035 clarifies that a person who commits a residential burglary under the new law (which would then be a crime of the Second Degree) would not be subject to the provisions of the No Early Release Act (“NERA”), but a person who commits the crime of armed residential burglary under the new law (which would then be a crime of the First Degree) would be subject to NERA. Under NERA, persons convicted of certain enumerated violent crimes are required to serve a minimum term of at least 85% of the sentence imposed. SeeN.J.S.A. 2C:43:7.2.

The change is most likely the result of a strong push from law enforcement authorities, who call the burglary law in its current form “a joke.” “The reward of burglaries outweighs the risk,” says Steve Cucciniello, Chief of Detectives at the Bergen County Prosecutor’s Office. “Nothing is going to change until the law changes.” Those same authorities often compare the burglary law in New Jersey with the law in New York, where residential burglary is already a crime of the Second Degree, a felony that carries with it a minimum term of imprisonment between 3½ and 15 years.

Joke or not, being charged with the crime of residential burglary can have serious consequences, which could become much more severe should A1035 become law.